Delivers the following judgment, which was adopted
on the last-mentioned date:

PROCEDURE

1. The case originated in an application (no. 33071/96)
against the Czech Republic lodged with the European Commission of Human
Rights (“the Commission”) under former Article 25 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Czech national, Mr Jan Malhous (“the applicant”),
on 10 May 1996. The applicant having died on 1 May 1998, the Court accepted
his nephew and designated heir, Mr Jan Bouček, as the person entitled
to pursue the application.

2. The applicant and later Mr Bouček, who had
been granted legal aid, were represented before the Court by Mr Tomáš
Schönfeld, a lawyer practising in Prague. The Czech Government (“the
Government”) were represented by their Agent, Mr Emerich Slavík,
Ministry of Justice.

3. The applicant alleged that his property rights
were violated in restitution proceedings and that he did not enjoy a
public hearing before an independent and impartial tribunal in these
proceedings.

4. The application was transmitted to the Court
on 1 November 1998, when Protocol No. 11 to the Convention came into
force (Article 5 § 2 of Protocol No. 11).

5. The application was allocated to the Third
Section of the Court (Rule 52 § 1 of the Rules of Court). On 11 May
1999 a Chamber of that Section, composed of the following judges: Sir
Nicolas Bratza,
Messrs J.-P. Costa, L. Loucaides, P. Kūris, K. Jungwiert, Mrs H.S.
Greve,
Messrs W. Fuhrmann, K. Traja, and also of Mrs S. Dollé, Section Registrar,
relinquished jurisdiction in favour of the Grand Chamber, none of the
parties having objected to relinquishment (Article 30 of the Convention
and
Rule 72).

6. The composition of the Grand Chamber was determined
according to the provisions of Article 27 §§ 2 and 3 of the Convention
and Rule 24 of the Rules of Court.

7. By a decision of 13 December 2000, following
a hearing on admissibility and merits (Rule 54 § 4), the Grand Chamber
declared the application partly admissible, insofar as it concerned
the applicant’s complaint under Article 6 § 1 of the Convention that
he did not have a public hearing in the restitution proceedings at issue.

8. Mr Bouček and the Government each filed written
observations on the merits. The Grand Chamber having decided, after
consulting the parties, that no hearing on the merits was required (Rule
59 § 2 in
fine), the parties replied in writing to each other’s observations.
Mr Bouček filed claims for just satisfaction under Article 41 of the
Convention, on which the Government submitted comments.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

9. In June 1949 plots of agricultural land owned
by the applicant’s father were expropriated by the former Doksy District
National Council (okresní národní výbor) under the Czechoslovak New Land
Reform Act No. 46/1948 (“the 1948 Act”). The applicant’s father
had never obtained any compensation. In 1957 some of these plots were
transferred to the
ownership of natural persons in an assignment procedure under the 1948
Act. In 1977 the applicant’s father died and the applicant’s rights
over his estate were confirmed.

10. After the fall of the communist regime in
Czechoslovakia, the Act No. 229/1991 on Adjustment of Ownership Rights
in respect of Land and Other Agricultural Property (“zákon o půdě”, the “Land Ownership Act”) entered
into force on 24 June 1991. The Act provided that the 1948 Act was no
longer applicable and that under certain conditions property confiscated
pursuant to that Act without compensation could be returned to its former
owners or their heirs if it was still in the possession of the State
or of a legal person. However, if such property had been transferred
into the possession of natural persons, the former owners or their heirs
could – subject to certain exceptions – only claim the assignment
of other equivalent property or financial compensation.

11. On the basis of the Land Ownership Act, the
applicant entered into restitution agreements with two legal persons
(the Hradec Králové State Forest Enterprise and the Líny – Krásná
Ves Agricultural Cooperative) on 10 December 1993 and 4 May 1994 respectively.
By two decisions of 12 October 1994 the Mladá Boleslav Land Office (pozemkový úřad,
“the Land Office”) refused to approve the restitution agreements.
Referring to section 32(3) of the Land Ownership Act, it found that
some of the plots had been assigned to different owners pursuant to
the 1948 Act, and that these owners, being natural persons, had proved
their property rights by showing their deeds of assignment. The Land
Office based its decisions on the following documents: the decision
of the former Mladá Boleslav State Notary (státní notářství) of 26 May 1977 on the applicant’s
father’s inheritance, the decision of the former Doksy District National
Council of 7 June 1949 on the expropriation of the applicant’s father’s
property, the record of the former Líny Local National Council (místní národní
výbor) of 7 November 1949 on the proceedings on the applicant’s
father’s appeal against the expropriation, the decision of the former
Liberec Regional National Council (krajský národní výbor) of 29 November 1949 by which the
decision of expropriation had been modified, and an extract (výpis) from the land register (pozemková kniha) relating to the Líny and Krásná Ves Districts.
The Land Office had also at its disposal copies of the deeds of assignment
made out by the Mladá Boleslav Land Register Office (katastrální úřad) on 23 September 1994.

12. It appears from the text of the invitation
issued by the Land Office on 28 September 1994 that the latter scheduled
a hearing for 12 October 1994 to which the applicant and his lawyer were
invited, together with the representatives of the State Forest Enterprise,
the agricultural cooperative and representatives of the Mladá Boleslav
Land
Fund (Pozemkový
fond). According to the record of the hearing, only the applicant
and the representatives of the State Forest Enterprise and of the agricultural
cooperative attended the hearing. The applicant refused to make any
comments on the issue of the administrative proceedings and did not
sign the record. The representatives of both legal persons left the
hearing before the end.

13. On 11 November 1994 the applicant lodged appeals
with the Prague Municipal Court (městský soud, “the Municipal Court”) against the two
administrative decisions. He claimed the restitution of the entire property,
contesting that the acquisition of part thereof had been proven by the
natural persons concerned and requesting access to the respective deeds
of assignment.

14. On 31 May 1995 the Municipal Court joined
both appeals and upheld the administrative decisions of 12 October 1994.
It held that the Land Office had correctly refused to approve the restitution
agreements as a whole as they also covered property whose ownership
had been transferred to natural persons and thus could not be returned
to the original owner. This had been established on the basis of all
relevant documents including the deeds of assignment, which were included
in the administrative files. The applicant could have consulted them
at any time during the administrative proceedings if he had wished to
do so as provided for in section 23(1) of the Code of Administrative
Procedure. The Municipal Court considered that no hearing was necessary
in the applicant’s case, as the facts had been correctly established
by the administrative authority and only points of law were in issue
before it. In this respect, it referred to section 250(f) of the Code
of Civil Procedure.

15. The case was referred back to the Land Office
pursuant to section 9(3) of the Land Ownership Act (see paragraph 25
below) which gave a new decision on 25 July 1995. In accordance with
the opinion of the Municipal Court, by which it was bound by virtue
of section 250(r) of the Code of Civil Procedure, the Land Office confirmed
the applicant’s property rights in respect of those plots which had
not been transferred to natural persons under the 1948 Act. At the same
time, it informed the applicant that he could seek compensation under
section 11 or 16 of the Land Ownership Act for the plots which could
not be returned to him.

16. On 14 September and 15 October 1995 the applicant
lodged a constitutional appeal (ústavní stížnost) claiming inter alia that his property rights had been violated, that
he had not been able to put forward further evidence and that the Municipal
Court had not informed him about its decision to join both cases. He
invoked inter
alia Articles 36 and 38 of the Charter of Fundamental Rights
and Freedoms (Listina základních práv a svobod).

17. On 29 November 1995 the Constitutional Court (Ústavní soud)
rejected the applicant’s appeal as manifestly ill-founded. It considered
that the applicant’s constitutional rights to a proper court procedure
had not been violated by the manner in which the Municipal Court had
dealt with his appeal. Having regard to the special nature of the judicial
review of administrative decisions, the court’s function was limited
to a legal reassessment of the case on the basis of the facts established
by the administrative authority. The applicant had not invoked evidence
disregarded by the Land Office and, by merely articulating his discontent
with the latter’s decision, had not raised any valid objection to
the facts as established by it. Furthermore, according to the Constitutional
Court, the Municipal Court had not infringed constitutional law by deciding
the case without a hearing as this was lawful under section 250(f) of
the Code of Civil Procedure when the case involved only the assessment
of points of law.

18. On 1 May 1998 the applicant died. Nevertheless,
his lawyer introduced before the Land Office a request for compensation
by the assignment of other plots pursuant to section 11(2) of the Land
Ownership Act. According to the Government, this request is still pending
before the Land Office.

19. On 29 October 1998 the judicial proceedings
regarding the applicant’s inheritance were terminated by a finding
of the Prague 2 District Court that the applicant had not left any estate.
Apparently, the court was not aware of the Land Office’s decision
of 25 July 1995.

20. On 22 February 2000 the applicant’s nephew,
Mr Bouček, requested the district court to re-open the inheritance
proceedings. He produced his uncle’s last will of 22 March 1998 in
which he was designated as a universal heir of the applicant’s estate,
while the applicant’s two adult children were disinherited. The re-opening
of the judicial proceedings concerning the inheritance was eventually
granted on 21 August 2000. On 28 March 2001 the Prague 2 District Court
approved an agreement concluded between Mr Bouček and the applicant’s
two children concerning the division of the applicant’s estate on
an equal basis.

II. RELEVANT DOMESTIC LAW

1. Tthe land ownership act

21. The Land Ownership Act regulates, inter alia, the restitution of certain agricultural and other
properties (defined in section 1), which have been ceded or transferred
to the State or other legal persons between
25 February 1948 and 1 January 1990. Section 6(1) lists the acts giving
rise to a restitution claim including, in sub-paragraph (b), confiscation
without compensation pursuant to the 1948 Act.

22. According to section 5, those obliged to make
restitution are, in principle, the State or any legal person possessing
the real property at the date when the Act entered into force. Natural
persons can be obliged to return real property to a rightful claimant
only in the circumstances set out in section 8, that is if they or their
relatives acquired it from the State or another legal person contrary
to any law in force at the relevant time or for a price inferior to
that specified in any applicable price regulations or on the basis of
unlawful advantage. In such cases the restitution is ordered by a judicial
decision upon the application of the rightful claimant which must be
filed before 31 December 1992 or within six months from the date when
the decision of the land office refusing the restitution of the real
property in question has become final. In any other case, a plot assigned
to a natural person who has established his property rights by producing
his deed of assignment is not available for restitution (section 32(3),
which was, however, repealed by a judgment of the Czech Constitutional
Court (No. 166/1995) with effect from 15 August 1995).

23. Furthermore, no restitution shall take place
in the cases listed in section 11(1) of the Act which include, inter alia, cases where a right of personal use of the property
has been created for a natural person except in the circumstances mentioned
in section 8. In such cases, the land office shall transfer other equivalent
State property, preferably located in the same area and determined according
to the principles of the agricultural land reallocation legislation,
to the rightful claimant if the latter consents (section 11(2)).

24. If no restitution is provided for and the
person entitled to restitution cannot be compensated by the assignment
of other real property, he has a right to financial compensation according
to specified conditions (section 16).

25. As regards the procedure to be followed, section
9(1) of the Act provides that a rightful claimant must lodge his claim
with the appropriate land office and at the same time request restitution
from the person or entity possessing the real property at issue. The
latter is required to conclude, within 60 days, an agreement on the
transfer of the property with the claimant (restituční dohoda, “restitution agreement”). According
to section 9(2), any restitution agreement must be confirmed by the
appropriate land office. If the land office does not approve the restitution
agreement, the
entitled person can appeal to the court. If the court, too, refuses
to approve the agreement, it refers the case back to the land office
for a decision on the merits of the case (section 9(3)). This decision
is again subject to judicial review (section 9(6)).

2. The code of administrative procedure

26. The proceedings before land offices are governed
by Act No. 71/1967 (Code of Administrative Procedure).

27. Sections 3 and 4 regulate the basic principles
of the proceedings before administrative authorities. The proceedings
must be conducted in accordance with the law, and parties must always
be given the opportunity to defend effectively their rights and interests,
to challenge the facts of the case and to make proposals as to the proceedings.
Furthermore, the parties enjoy equal rights and have the same obligations.
The decisions of administrative authorities must be based on facts that
have been established in a reliable manner.

28. Pursuant to section 21, the administrative
authority shall order an oral hearing if this is required by the nature
of the case, in particular where such a hearing will contribute to the
clarification of the matter at issue. The parties to the proceedings
must be summoned to attend the oral hearing and invited to express their
comments and proposals in the course of the hearing. Oral hearings are
not public unless a special legal rule provides otherwise or the administrative
authority decides that the hearing shall be public.

29. According to section 23(1), the parties to
the administrative proceedings and their representatives have the right
to have access to documents and to make extracts therefrom, except for
the records of voting.

30. According to section 32(1), administrative
authorities are under the obligation to establish all facts accurately
and comprehensively. For that purpose they have to obtain all necessary
supporting documents and data.

3. The code of civil procedure

31. The lawfulness of decisions of the administrative
authorities can be reviewed by the courts in accordance with Part V
of the Code of Civil Procedure.

32. At the relevant time section 250(f) (repealed
by a judgment of the Czech Constitutional Court No. 269/96 with effect
from 1 May 1997) entitled the courts to deliver a judgment without an
oral hearing in simple cases, in particular when there was no doubt
as to whether the administrative authority had established the facts
correctly, and only points of law were at issue.

33. Pursuant to section 250(i)(1), the courts,
when reviewing administrative authorities’ decisions, take into consideration
the facts as they existed at the moment when the administrative decision
was taken.

34. In accordance with section 250(m)(3), the
parties to the proceedings before the court are the parties in the proceedings
before the administrative authority and the administrative authority
whose decision is to be reviewed.

35. Pursuant to section 250(q), when the court
reviewing an administrative authority’s decision does not decide without
an oral hearing pursuant to section 250(f), it may take such evidence
as is necessary for reviewing the decision at issue.

36. Pursuant to section 250(r), if the court quashes
the decision of the administrative authority, the latter, when taking
a new decision, is bound by the legal opinion expressed by the court.

37. In accordance with section 250(s), a court
decision reviewing an administrative decision is not subject to a remedy
except in the cases listed in sub-paragraph 2 (which are not pertinent
in the present case).

38. According to section 156, a judgment must
be pronounced publicly. In accordance with the established practice,
the public delivery of the judgment must be recorded in the minutes
also in those cases where the judgment was delivered without an oral
hearing.

4. The land adjustment and land offices
act no. 284/1991

39. According to section 11(1), district land
offices are autonomousdepartments (samostatné referáty) of district offices.

5. The district offices act

40. At the relevant time, the status and competence
of district offices was governed by Act No. 425/1990. This Act was repealed
on 12 November 2000 when a new Act on District Offices (No. 147/2000)
entered into force.

41. Section 2 describes district offices as administrative
organs, which carry out local state administration on their respective
territories. The law can empower district offices to carry out local
state administration on other territories. According to section 14,
the exercise of the activities of district offices is directed and controlled
by the Government.

42. Pursuant to section 8(1), the head (přednosta) of a district office is appointed and dismissed
by the Government on the proposal of the Minister of the Interior.

43. According to section 8(5), the officers of
district offices are subordinated to the heads of those offices.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE
6 § 1 OF THE CONVENTION

44. The applicant complains that he did not have
a public hearing by an independent and impartial tribunal in the restitution
proceedings.

45. Article 6 § 1 of the Convention, in so far
as relevant, provides:

“In the determination
of his civil rights and obligations ..., everyone is entitled to a fair
and public hearing ... by an independent and impartial tribunal ...
Judgment shall be pronounced publicly but the press and public may be
excluded from all or part of the trial in the interests of morals, public
order or national security in a democratic society, where the interests
of juveniles or the protection of the private life of the parties so
require, or to the extent strictly necessary in the opinion of the court
in special circumstances where publicity would prejudice the interests
of justice.”

A. Submissions of the parties

1. The Government

46. The Government emphasised that there are two
types of decisions which a land office can adopt in restitution proceedings:
first, a decision under sections 9(2) and 9(3) of the Land Ownership
Act granting or refusing approval of a restitution agreement, and secondly,
a decision under section 9(4) of the Act determining the property rights
of a rightful claimant if approval of the agreement has been refused.

47. In the present case, in the first type of
proceedings the Land Office, acting under section 21 of the Code of
Administrative Procedure, held an oral hearing on 12 October 1994. According
to the record of this hearing, the applicant and representatives of
the two legal persons concerned were present. However, the applicant
did not in the course of the proceedings submit any relevant objection
concerning the ownership of the lands in dispute. According to the Government,
the deeds of assignment of these lands to individual persons had since
the beginning of the proceedings been included in the administrative
files, to which the applicant had access. The Government claim that
at the hearing of 12 October 1994 the applicant indeed declared that
he withdrew from the restitution agreements when he learnt that certain
lands could not be returned to him.

48. In the subsequent judicial review proceedings,
the Municipal Court only examined the circumstances on which the Land
Office had based its decisions and which had been apparent from the
administrative file as there was no doubt about the ownership rights
of the natural persons over the lands in question. In these circumstances,
the holding of a public hearing could not in the Government’s opinion
have had any real significance for the consideration of the applicant’s
case. Although the Municipal Court did not hold a public hearing, its
judgment of 31 May 1995, by which it upheld the two decisions of the
Land Office to refuse approval of the restitution agreements, was delivered
publicly, as provided for in section 156 of the Code of Civil Procedure.

49. The Government added that this judgment was
not the final decision in the case, the determination of the scope of
the applicant’s property rights to the lands in question being the
subject of the subsequent proceedings before the Land Office. In this
context, they emphasised, as they had already done at the admissibility
stage, that the applicant could have lodged a remedy against the Land
Office’s decision of 25 July 1995, as provided for in section 9(6)
of the Land Ownership Act. If he had done so, he could have requested
the Municipal Court to re-examine this administrative decision at a
public hearing. Furthermore, the applicant could have brought a civil
action before a competent district court, pursuant to section 8(1) of
the Land Ownership Act, thereby disputing the validity of the transfer
of his father’s property to the natural persons concerned.

2. The applicant

50. The applicant contested the arguments of the
Government. He challenged inter alia the Government’s contention that the deeds of
assignment issued on the names of the natural persons owning the lands
in dispute had already been included in the administrative file at the
beginning of the administrative proceedings in 1991. He submitted that
they had been produced by the Land Office on 23 September 1994 and could
not, therefore, have been attached to the administrative file before
that date, which was itself long after the restitution agreements had
been concluded on 10 December 1993 and 4 May 1994, respectively.

51. The applicant also submitted that the Land
Office or the Municipal Court had not considered the fact that although
the lands in issue had been expropriated in 1949 and assigned to the
natural persons in 1957, they had remained under the control of the
State Forest Enterprise or agricultural cooperative. The natural persons
had thus formally owned the lands but had never used them. The applicant
argued that the administrative file had not contained any documents
which would have given any detail concerning the owners of the lands.
In these circumstances, it could not be said that the facts of the case
had correctly been established by the Land Office.
However, as it applied section 250(f) of the Code of Civil Procedure,
the Municipal Court deprived the applicant of the possibility of raising
these objections at a public hearing.

52. The applicant observed that, at the relevant
time, the Constitutional Court in several restitution cases quashed
judgments which had been adopted without a public hearing pursuant to
section 250(f) of the Code of Civil Procedure. Invoking Article 38 of
the Charter of Fundamental Rights and Freedoms and Article 6 of the
Convention, the Constitutional Court found that cases involving controversial
arguments could not be considered to be simple cases. Thus in decision
No. II. ÚS 269/95, the Constitutional Court expressly stated that “restitution
cases cannot be re-examined without a public hearing taking into account
their complexity and the fact that former acts of deprivation of property
rights had taken place a long time before”. Similarly, on 29 November
1994 the Constitutional Court quashed a judgment of the Prague Municipal
Court given without a public hearing in another restitution case (decision
No. Pl. ÚS 41/94) holding that “the simple cases mentioned in section
250(f) of the Code of Civil Procedure are, according to the legislator,
cases in which the necessary evidence has been obtained and the cases
themselves are quite clear and only points of law are really at issue”.

53. The applicant further submitted that he had
not been invited to the public pronouncement of the judgment of the
Municipal Court of 31 May 1995.

54. Finally, the applicant contended that
the Land Office’s decision of 25 July 1995 could not be further challenged
in the Municipal Court as the matter would have been treated as res iudicata.
The fact that at the time of the introduction of his constitutional
appeal all available remedies had been used was also confirmed by the
Constitutional Court, which did not dismiss his appeal under the provisions
of the Constitutional Court Act requiring the prior exhaustion of
all those remedies.

B. The Court’s assessment

55. The Court reiterates that the holding of court
hearings in public constitutes a fundamental principle enshrined in
paragraph 1 of Article 6. This public character protects litigants against
the administration of justice in secret with no public scrutiny; it
is also one of the means whereby confidence in the courts can be maintained.
By rendering the administration of justice transparent, publicity contributes
to the achievement of the aim of Article 6 § 1, namely a fair trial,
the guarantee of which is one of the fundamental principles of any democratic
society, within the meaning of the Convention (see, for example, the
Diennet v. France judgment of 26 September 1995, Series A no. 325-A,
pp. 14–15, § 33).

56. In the present case the applicant was in principle
entitled to a public hearing as none of the exceptions laid down in
the second sentence of Article 6 § 1 applied (see the Håkansson and
Sturesson judgment of 21 February 1990, Series A no. 171-A, p. 20, §
64). These exceptions were not invoked in the domestic proceedings.
In particular, the Constitutional Court which inter alia examined the question of the lack of a public hearing
in the present case did not refer to the exceptions. Nor did the Government
invoke the second sentence of Article 6 § 1 of the Convention.

57. The Court notes that the only hearing held
in the case took place on 12 October 1994 before the Mladá Boleslav
Land Office. According to the record of that hearing, the applicant’s
restitution claims were considered in his presence and in the presence
of representatives of both legal persons who had been asked to restore
to the applicant the confiscated property which had earlier belonged
to his father. However, the Land Office cannot be considered as an authority
which satisfies the requirements of independence necessary for a tribunal
within the meaning of Article 6 § 1 of the Convention. The Court observes
that the Land Office is an autonomous department of the District Office
which is charged with carrying out local state administration under
the control of the Government (see paragraphs 40-43). The appointment
of the head of the District Office is controlled by the executive and
its officers are subordinated to him (see also the Kadubec v. Slovakia
judgment of 2 September 1998, Reports of Judgments and Decisions 1998-VI, p. 2531, § 57).
In any event, the hearing before this administrative authority was not
public, being open only to the parties and their representatives.

58. It is true that the Land Office’s decisions
of 12 October 1994 were subject to judicial review and that the applicant
appealed to the Municipal Court and to the Constitutional Court. However,
neither of these tribunals held a public hearing. As far as the proceedings
before the Municipal Court are concerned, the Court observes that the
applicant did not expressly ask for a public hearing to be held. The
question therefore arises whether the applicant should be regarded as
having waived his right to a hearing (see the Håkansson and Sturesson
judgment, previously cited, pp. 20-21, § 67; Schuler-Zgraggen v. Switzerland
judgment of 24 June 1993, Series A no. 263, pp. 19-20, § 58; Zumtobel
v. Austria judgment of 21 September 1993, Series A no. 268-A, p. 14, §
34).

59. The Court notes that the Municipal Court did
not base its decision not to hold a hearing on the applicant’s failure
to request one. It rather examined ex officio whether the conditions set forth in section 250(f)
of the Code of Civil Procedure for dispensing with a hearing were met,
concluding that this indeed was the case (see paragraph 14). The Constitutional
Court confirmed the Municipal Court’s conclusion. In these circumstances,
the Court cannot attach decisive importance to the applicant’s failure
explicitly to request a hearing, but has to proceed to an independent
evaluation of the question, having the requirements of Article 6 as
the point of reference.

60. In this respect the Court notes that the Municipal
Court’s jurisdiction was not strictly limited to matters of law, but
also extended to the assessment of whether the facts had been correctly
established by the administrative authority. The Municipal Court could,
if necessary, also take evidence (see paragraph 35). The submissions
of the applicant to the Municipal Court in turn (see paragraph 13) indicate
that his appeal was capable of raising also factual issues (see the
Fredin v. Sweden judgment of 23 February 1994, Series A no. 283, p.
11, § 22). Without questioning the Municipal Court’s conclusion that
the facts had been correctly established by the administrative authority,
the Court concludes, taking into account also what was at stake for
the applicant, that in these circumstances Article 6 § 1 required an
oral hearing before a tribunal.

61. The Court further notes that in the subsequent
administrative proceedings the Land Office, which was bound by the judgment
of the Municipal Court of 31 May 1995, did not hold a further hearing
with the parties of the case. The Court considers that although the
applicant could have requested a judicial review of the Land Office’s
decision of 25 July 1995, it is unrealistic to assume that in such review
proceedings, concerning an administrative decision based on the Municipal
Court’s earlier findings, the court would have granted an oral hearing
for the purpose of examining essentially the same questions which it
had previously found to fall within the scope of application of section
250(f). Moreover, the Constitutional Court in its above decision, which
was adopted in full knowledge of the Land Office’s decision of 25
July 1995, did not suggest that different considerations might apply
as regards a possible judicial review of that latter decision. In these
circumstances, the Court cannot attach weight to the allegedly different
character of the two administrative decisions of the Land Office underlined
by the Government (see paragraph 46). It recalls that section 250(f)
of the Code of Civil Procedure was still in force at the relevant time
and the Constitutional Court indeed found its application in the applicant’s
case to be unobjectionable.

62. The Court further observes that the proceedings
before the Constitutional Court were also conducted without a public
hearing. However, these proceedings, limited to the examination of questions
of constitutionality, did not involve a direct and full determination
of the applicant’s civil rights in the restitution proceedings. A
public hearing in those proceedings could not, therefore, have remedied
the lack of a hearing at the decisive stage of the proceedings where
the merits of the applicant’s restitution claims were determined.
Finally, the Court finds that the applicant was not obliged to introduce
judicial proceedings under section 8
of the Land Ownership Act, the Court being concerned in the present
case only with the proceedings under section 9 of the Act which were
actually pursued.

63. Consequently, the Court holds that there has
been a breach of Article 6 § 1 on account of the lack of a public hearing
before an independent and impartial tribunal in the restitution proceedings
complained of by the applicant.

II. APPLICATION OF ARTICLE 41 OF
THE CONVENTION

64. Article 41 of the Convention provides:

“If the Court finds
that there has been a violation of the Convention or the Protocols thereto,
and if the internal law of the High Contracting Party concerned allows
only partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”

A. Damage

65. In respect of pecuniary damage the applicant’s
nephew, Mr Bouček, claimed 1,489,051 korunas (CZK) in compensation
for the value of the lands which could not be returned to the applicant,
and CZK 588,852 in compensation for loss of profits from 4 May 1994,
the date on which the Líny – Krásná Ves Agricultural Co-operative
entered into the restitution agreement with the applicant (see paragraph
11), to 2001.

66. The Government asserted that there was no
causal link between the sums claimed by the applicant’s nephew and
the alleged violation of Article 6 § 1 of the Convention in the restitution
proceedings.

67. The Court first recalls that in the decision
as to the admissibility of the present application, it recognised the locus standi
of Mr Bouček to pursue the application after the applicant’s death
on 1 May 1998 (see paragraph 7). The Court pointed out that this recognition
of Mr Bouček’s entitlement to pursue the application in no way affected
the scope of the case as originally submitted by the applicant. The
Court considers that in such circumstances the person entitled to pursue
the application after the applicant’s death may also take the applicant’s
place as regards claims for just satisfaction under Article 41 of the
Convention and Rule 60 of the Rules of Court.

68. The Court notes that the sums claimed in respect
of pecuniary damage relate to the value of the lands which were not
returned to the applicant and to the loss of profits connected with
the use of these lands. The applicant’s nephew is in effect claiming
compensation for an expropriation of his uncle’s property which, according
to him, was unlawful. However, the applicant’s complaint under Article
1 of Protocol No. 1 to the Convention was declared inadmissible. The
only complaint which remained before the Court for the determination
of the merits was the complaint concerning the lack of a public hearing
before an independent and impartial tribunal within the meaning of Article
6 § 1 of the Convention. In this regard, the Court cannot speculate
as to the outcome of the restitution proceedings had the position been
otherwise, i.e. if a public hearing had taken place before the national
courts.

69. Moreover, the Court observes that on 3 July
1998, the applicant’s lawyer introduced before the Land Office a request
for compensation by the assignment of other plots pursuant to section
11(2) of the Land Ownership Act and that this request is still pending
before the Land Office (see paragraph 18) and is not the subject of
the present complaint.

70. The Court considers therefore that the applicant’s
nephew has not shown that there exists a causal link between the pecuniary
damages claimed by him and the violation of Article 6 § 1 of the Convention
established by the Court. Accordingly, his claim for pecuniary damages
must be rejected.

71. The Court notes that the applicant’s nephew
has not claimed compensation for non-pecuniary damage in respect of
the violation of Article 6 § 1. In any event, the application of section
250(f) of the Code of Civil Procedure underlying this violation did
not affect Mr Bouček personally as this provision had already been
repealed by the time he took over his uncle’s case. In these circumstances
the Court considers that its finding of a violation of Article 6 §
1 constitutes in itself sufficient just satisfaction in respect of any
non-pecuniary damage which the applicant may have suffered as a result
of this violation.

B. Costs and expenses

72. The applicant’s nephew requested the Court
to award him the sum of CZK 340,420.50, calculated on the basis of domestic
law rates, in respect of costs and expenses which he had incurred in
the proceedings before both the domestic authorities and the Convention
organs. Mr Bouček further indicated that the applicant’s expenses
were covered by the legal aid granted to the applicant by the Commission
(see paragraph 2).

73. The Government argued that the sums claimed
were excessive and that the applicant’s nephew had not shown that
all the costs and expenses claimed had been necessarily incurred. They
also pointed out that the applicant and his nephew had benefited from
legal aid before the Convention organs.

74. The Court observes that, according to its
case-law, to be awarded costs and expenses the injured party must have
incurred them in order to seek to prevent or rectify a violation of
the Convention, to have the same established by the Court and to obtain
redress therefor. It must also be shown that the costs were actually
and necessarily incurred and that they are reasonable as to quantum
(see, among other authorities, the Philis v. Greece (no. 1) judgment
of 27 August 1991, Series A no. 209, p. 25, § 74, and the Nikolova
v. Bulgaria judgment of 25 March 1999, Reports of Judgments and Decisions 1997-II, p. 227, § 79).
The Court notes that Mr Bouček confirmed that his uncle’s expenses
relating to the proceedings before the Convention institutions were
covered by the legal aid which had been awarded to him by the Commission.
It also notes that the costs in the inheritance proceedings could not
have been incurred in order to prevent or rectify a violation affecting
the restitution proceedings. It considers therefore that it should reject
this part of the claim. With regard to the costs of Mr Bouček’s representation
before the Convention organs, the Court recalls that it does not regard
itself bound by domestic scales and practices, although it may derive
some assistance from them (see, among many other authorities, the Tolstoy
Miloslavsky v. the United Kingdom judgment of 13 July 1995, Series A
no. 316, p. 83, § 77, and the Baskaya and Okçuoğlu v. Turkey judgment
of 8 July 1999, Reports of Judgments and Decisions 1999-IV, § 98). Noting that
the application has been only partly successful and deciding on an equitable
basis, the Court awards the applicant’s nephew in aggregate the sum
of CZK 85,000[1]
in legal costs and expenses for the proceedings before the Commission
and the Court, less the 4,100 French francs received by way of legal
aid from the Council of Europe, such sum to be paid, according to the
wish expressed by the applicant’s nephew, into his lawyer’s bank
account in the Czech Republic.

C. Default interest

75. According to the information available to
the Court, the statutory rate of interest applicable in the Czech Republic
at the date of adoption of the present judgment is 8% per annum.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a violation of Article 6 § 1 of the
Convention;

2. Holds

(a) that the finding of a violation constitutes
in itself sufficient just satisfaction in respect of any non-pecuniary
damage which the applicant may have suffered as a result of this violation;

(b) that the respondent State is to pay,
within three months, to the applicant’s nephew CZK 85,000 (eighty-five
thousand) for costs and expenses, less the 4,100 (four thousand one
hundred) French francs already paid by the Council of Europe by way
of legal aid;

(b) that simple interest at an annual rate
of 8% shall be payable from the expiry of the above-mentioned three
months until settlement;

3. Dismisses the remainder of the claims for just satisfaction
lodged by the applicant’s nephew.

Done in
English and in French, and delivered at a public hearing in the Human
Rights Building, Strasbourg, on 12 July 2001.